0120110615
04-14-2011
Christine M. Baca, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Christine M. Baca,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 0120110615
Agency No. 4F-900-0199-10
DECISION
Complainant filed a timely appeal with this Commission from the
Agency's decision dated October 6, 2010, dismissing her complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C.
� 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Letter Carrier at the Agency's Culver City Post Office facility in
Culver City, CA. She filed a formal complaint, which the Agency defined
as alleging that it subjected her to discrimination on the bases of
disability (left leg, knee) and reprisal for prior protected EEO when:
1. since May 22, 2010, her supervisor has treated her negatively and
disrespectfully;
2. on an unspecified date, she was denied surgery because the supervisor
"departed" her from the Office of Workers' Compensation Programs (OWCP);
3. on June 10, 2010, she was asked for a doctor's note but then told
"never mind";
4. on June 21, 2010, management refused to acknowledge her therapy
appointment so she missed it; and
5. on July 21, 2010, she was told she could no longer be covered by
Continuation of Pay [an OWCP related benefit].
The record reflects that Complainant alleged reprisal against prior
protected activity under Section 501 of the Rehabilitation Act of 1973,
as amended, 29 U.S.C. � 791 et seq. According to the counselor's report,
she alleged retaliation for claiming an injury.
Complainant initiated EEO contact on June 15, 2010, alleging reprisal
discrimination when on June 11, 2010, her supervisor yelled at her.
She also filed a grievance on the matter, and statements were taken
from witnesses on grievance interview sheets. The Agency dismissed the
complaint for raising matters that were not brought to the attention
of an EEO counselor and were not like or related to a matter that that
has been brought to the attention of an EEO counselor. 29 C.F.R. �
1614.107(a)(2).
The Agency also dismissed the complaint for failure to state a claim.
29 C.F.R. � 1614.107(a)(1). On claims 1,
3 and 4, the Agency reasoned that Complainant was not aggrieved, i.e.,
she provided no evidence she was disciplined or suffered any harm or
loss, and she was not legally harassed. On claims 2 and 5, the Agency
reasoned that they were a collateral attack on the Department of Labor,
OWCP process.
CONTENTIONS ON APPEAL
Complainant submits documentation in connection with the June 11, 2010,
yelling incident, including grievance papers and the counselor's report.
In opposition to the appeal, the Agency urges that the FAD be affirmed.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103,
.106(a). The Commission's federal sector case precedent has long defined
an "aggrieved employee" as one who suffers a present harm or loss with
respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme
Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477
U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently
severe or pervasive to alter the conditions of the complainant's
employment. The Court explained that an "objectively hostile or abusive
work environment [is created when] a reasonable person would find [it]
hostile or abusive" and the complainant subjectively perceives it as such.
Harris, at 21-22. Thus, not all claims of harassment are actionable.
Where a complaint does not challenge an agency action or inaction
regarding a specific term, condition or privilege of employment, a claim
of harassment is actionable only if, allegedly, the harassment to which
the complainant has been subjected was sufficiently severe or pervasive
to alter the conditions of the complainant's employment.
The Commission has a policy of considering reprisal claims with a
broad view of coverage. See Carroll v. Department of the Army, EEOC
Request No. 05970939 (April 4, 2000). Under Commission policy, claimed
retaliatory actions which can be challenged are not restricted to those
which affect a term or condition of employment. Rather, a complainant
is protected from any discrimination that is reasonably likely to deter
protected activity. See EEOC Compliance Manual Section 8, "Retaliation,"
No. 915.003 (May 20, 1998), at 8-15; see also Carroll.
As an initial matter, we find that the June 11, 2010, yelling incident
is part of and included in claim 1. Complainant failed to show that
claims 1, 3 and 4 rise the level of actionable harassment, or that
she was harmed. Complainant did not raise sufficient incidents of
sufficient severity to show that she has a claim which rises to the level
of actionable harassment. Regarding claim 4, Complainant does not contend
that she requested and was denied leave, or that she reminded management
of her therapy appointment and advised she wanted to go. Given this,
we find that claims 1, 3 and 4 fail to state a claim. We also find
that these matters would not reasonably likely deter EEO activity.
Claims 2 and 5 involve the denial of benefits under the Federal Employees'
Compensation Act, which is administered by the Department of Labor, OWCP.
The Commission has held that an employee cannot use the EEO complaint
process to lodge a collateral attack on another proceeding. See Wills
v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998);
Kleinman v. United States Postal Service, EEOC Request No. 05940585
(September 22, 1994); Lingad v. United States Postal Service, EEOC
Request No. 05930106 (June 25, 1993). The proper forum for Complainant
to raise challenges to the cessation of continuation of pay and denial
of a surgery benefit is in the OWCP process. It is inappropriate use
the EEO process to collaterally attack the OWCP process. Claims 2 and
5 fail to state a claim.1
Accordingly, the FAD is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this
case if the Complainant or the Agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the
policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive
for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
77960, Washington, DC 20013. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as the
defendant in the complaint the person who is the official Agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. �� 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney
with the
Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time
limits as stated in the paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
April 14, 2011
__________________
Date
1 As we affirm the dismissal of the complaint for failure to state a
claim, we need not address whether the Agency also properly dismissed
the complaint under 29 C.F.R. � 1614.107(a)(2).
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0120110615
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120110615